Joseph Muscat told a court that a magistrate investigating the controversial hospitals deal “took the side” of her father and brother, breaching the former prime minister's rights and prejudicing his case.
The ex-Labour leader took the stand on Thursday to make his case for Magistrate Gabriella Vella to be removed from the inquiry she is leading into the Vitals hospitals deal.
During his testimony, he complained about the magistrate’s classification of comments made by her father and brother on social media as free speech.
“The minute Magistrate Vella passed judgment about her father and brother, saying that their comments were freedom of expression, that minute she took their side against me,” he said.
“From that moment on, the case was definitely prejudiced and my rights breached."
Muscat has asked the court to order the magistrate’s recusal after she rejected a request to step aside from leading the inquiry into the concession granted to Vitals Global Healthcare to run three state hospitals.
On Thursday, Muscat’s lawyers made a request for an interim measure – that Vella should be suspended from any work on the inquiry while the court is deciding on her possible recusal.
At issue is the social media activity of Massimo and Aldo Vella, who shared posts by Repubblika calling for protests to send politicians to jail, Muscat’s lawyer, Charlon Gouder argued.
One of the relative's comments included a post that said: “And who was the head of government at the time? Muscat.”
The former prime minister, who was accompanied by his security guards as well as his lawyer, appeared relaxed during the almost three-hour sitting.
"I’m no lawyer but from a logical aspect, the minute the magistrate made a decision taking her relatives’ side, the need for her recusal arose," he said.
"So we are seeking an interim measure to ensure that my rights will not be breached any further."
He asked if the magistrate’s relatives were “somehow involved in the inquiry” and said that there were “political repercussions” in this case.
“The minute the inquiring magistrate recommends prosecution against someone, that is a very important decision.”
Comparing the court’s role to a COVID-19 vaccine, Muscat’s lawyer said the decision on this case would “prevent possible breach of rights”.
He said those rights would be safeguarded through an interim measure if “Magistrate Vella is ordered by this court to stop from gathering evidence and hear testimonies in that inquiry until this case is decided”.
'Allow the institutions to work'
Speaking on behalf of the State Advocate, lawyer James D’Agostino argued against the interim measure.
He said that these are usually granted in exceptional cases such as extradition, deportation or danger of life or limb.
“Thankfully Dr Muscat is facing none of those,” he said.
He included a list of arguments rebutting the measure, saying that even if the inquiring magistrate orders Muscat to be prosecuted, it would go before a separate court and by suspending the inquiry, it would risk breaching the rights of the other people being investigated.
"So let’s allow the institutions to work, let’s let justice take its course," he said. "There's no need for an interim measure here. We can continue with the case. If he’s right he wins".
Madam Justice Doreen Clarke also heard a request from rule of law group Repubblika seeking authorisation to intervene in the case for the removal of the magistrate, with lawyer Jason Azzopardi arguing that they had called for the inquiry in the first place.
Earlier on Thursday, the NGO’s president Robert Aquilina described Muscat as a “corrupt prime minister”.
Muscat’s lawyer argued that this showed the NGO’s true motivation for being asked to be an intervening party in the case.
The case continues on July 5 when decisions will be made on both requests.
Case continues July 5
3.18pm That concludes today's sitting. The case continues on July 5 at 8.30am when the decisions on today's arguments will be given. Thank you for joining us today. We'll have a short summary above in a few minutes.
3.08pm We're back. And Muscat's lawyer isn't done. He says that the words of the State's lawyer throw us in limbo. "At times he said that we don’t know where the inquiry has got to, at others he says it’s almost wrapped up."
He says that we know Muscat is a suspected person because Repubblika had filed a request for an investigation in his regard, which was published on social media "and some two months later his home was searched".
The State lawyer argued that Muscat can always defend his rights in other fora but "we are not saying that the inquiry is to stop outright but to continue before a different magistrate in such manner as to guarantee impartiality".
Judge suspends hearing
3pm The lengthy submissions are over. The judge suspends the hearing for a couple of minutes. That gives you enough time to grab a coffee while we wait to resume.
A list of reasons to refuse
2.53pm The State Advocate's lawyer continues with more reasons to refuse Muscat's request to order the magistrate to suspend her work.
- He argues that Muscat says that he is a suspect targeted in the magisterial inquiry. The magistrate might not recommend charges and the matter would stop there.
- If she orders prosecution, that would be before a separate court and Muscat would have due process, with all legal safeguards and with the right to appeal.
- D'Agostino points out that Repubblika filed three applications for Magistrate Lia’s recusal in a separate case while Muscat only made one attempt.
- And even if he suffers damage, it's "certainly not irreparable".
- If his request is upheld there’s the danger that certain evidence might be lost or destroyed. This court would be stultifying the inquiry.
- If the inquiry is ordered to be suspended, what about the rights of the other persons investigated? Their rights to have a fair hearing within reasonable time would be cast aside. "So it’s robbing Peter to pay Paul".
"So let’s allow the institutions to work, let’s let justice take its course," he says. "There's no need for an interim measure here. We can continue with the case. If he’s right he wins".
No exceptional circumstances
2.48pm The lawyer for the State Advocate points out that interim measures are exceptional measures normally granted in cases of extradition, deportation or danger of life or limb.
“Thankfully Dr Muscat is facing none of those,” he says as Muscat smiles.
State Advocate opposes interim measure
2.42pm The State Advocate's lawyer is now arguing against allowing the interim measure. "The whole purpose of an interim measure is to prevent something from happening, a future event expected to happen," he begins.
"Yet Joseph Muscat claimed in his application that he has already suffered the breach. So what’s the use of an interim measure if that is the case? What’s done is done."
2.36pm Gouder takes a seat beside his client, who speaks to him in a low voice. Tete a tete. Muscat takes out a folded paper from his suit pocket and jots something down, as State Advocate lawyer D’Agostino continues with his arguments.
2.31pm The State Advocate's lawyer is speaking. He insists there is "no urgency" in this case, and cites some previous cases to back up his argument. He says the case is already being treated expediently.
Muscat's lawyer wraps up
2.23pm Gouder details some of the comments by Magistrate Vella's relatives that are at the heart of this case. They shared Repubblika’s social media posts for protests to send politicians to jail, he says. One of them mentioned the leader of government at the time the hospitals decision was taken. “And who was the head of government at the time? Muscat,” a relative had said.
"The magistrate should have recused herself," Gouder argues. "What Massimo and Aldo Vella said impinged upon the subject of this case and is very similar to what is being tackled in this case. What they said presents prejudice to Muscat. It impacts the Magistrate’s objective impartiality and consequently Muscat’s rights."
What is the interim measure Muscat is seeking?
2.11pm Muscat is asking for an interim measure in the case. He wants the court to stop Magistrate Gabriella Vella from gathering evidence and hearing testimony in the hospitals inquiry until a decision is made on whether she should be completely removed from the case.
"We shouldn’t wait for the violation to happen but take action to prevent the breach," Gouder argues.
"And that is what is happening in this case unless Magistrate Vella is ordered by this court to stop from gathering evidence and hear testimonies in that inquiry until this case is decided".
Court's role like a COVID-19 vaccine
2.07pm Gouder draws an imaginative parallel to taking a vaccine to prevent COVID-19. "Likewise this court’s role is to prevent possible breach of rights," he says.
The case in a nutshell
2.03pm Muscat's lawyer distills his case into two sentences.
"We are here to avoid Joseph Muscat’s rights from being breached, not to let it happen. When Magistrate Vella decided about her relatives’ comments, totally discarding Muscat’s request for recusal, at that point she had no option but to recuse herself."
Urgency of the case
1.53pm The court has now moved on to hear what the parties have to say about the urgency of this case. Gouder highlights that it drew public attention, was widely followed and that Muscat was a former prime minister.
"Whichever way you see it, this is a political case and therefore attracts public interest all the more," he says.
Muscat is asking for protection in terms of the Constitution and under the EU Convention on Human Rights, he says.
1.47pm The row over the documents continues. Gouder asks for authorisation to summon the court registrar to produce a copy of the original application from the inquiry. D’Agostino sticks to his guns. The requested documents are not relevant to the subject matter of this case, the acts of the inquiry are confidential and we don’t know if it’s wrapped up. So how can the court registrar bring those documents?
Madam Justice Doreen Clarke denies the request because the court deemed that the claims being tackled here, by nature, are to be determined with urgency and in any case, the documents mentioned are not relevant.
1.39pm Muscat's lawyer says he wants to present some documents from the magisterial inquiry and hits an immediate objection from the State Advocate’s lawyer, who says that the magisterial inquiry is secret.
"Nothing from that inquiry can end up in the public domain," he emphasizes. "And the magisterial inquiry is still ongoing. Until it is wrapped up and the Attorney General issues consent, no documentation therefrom may be produced in evidence elsewhere."
Gouder insists that he cannot wrap up evidence until he gets those documents from the inquiry. "The matter is very critical," he insists.
'Are the magistrate's relatives involved?'
1.34pm. Muscat says he has no problem if someone has views that are against his: that's just politics.
"That’s why I hardly ever filed libels. Perhaps two in my whole life," he says.
He says that he has "full respect" for the magistrate's relatives and they have a right to their opinion. He claims one is "close to the NGO which asked for the inquiry in the first place".
"But are they somehow involved in the inquiry? What I’m saying is that since they expressed their views, it places the magistrate in a position that she must uphold request for recusal," he says.
'There are political repercussions'
1.30pm The State Advocate's lawyer asks Muscat if he knows what magisterial inquiry is being carried out. "I’m no lawyer but as an ordinary citizen there was a request for an inquiry into the hospitals concession," Muscat answers. "Three ministers were mentioned. I understand that such an inquiry is an investigation about the matter."
D'Agostino responds: "Do you understand that an inquiring magistrate does not deliver judgment?"
Muscat replies: "There are political repercussions. The minute the inquiring magistrate recommends prosecution against someone, that is a very important decision. In my view even at that stage you can be prejudiced."
'I want to safeguard my rights'
1.26pm Muscat continues.
"In her decree the inquiring magistrate gave reasons for denying my request, saying it was freedom of expression. I want to testify to safeguard my rights and the magistrate said that she was taking measures accordingly," he says.
Muscat says that he was never served notice. But there were media reports on this inquiry and his home was searched.
"The fact that the magistrate said that he wanted to 'defend his position' shows that I was being accused of something," he says. And that is why he wants an interim measure.
'I'm no lawyer but...'
1.23pm Joseph Muscat says that he sees a situation where "the minute Magistrate Vella passed judgment about her father and brother, saying that their comments were freedom of expression, that minute she took their side against me".
He said that "from that moment on, the case was definitely prejudiced and my rights breached."
He says that is what triggered his request.
"I’m no lawyer but from a logical aspect, the minute the magistrate made a decision taking her relatives’ side, the need for her recusal arose," he says. "So we are seeking an interim measure to ensure that my rights will not be breached any further."
Muscat walks to the witness stand
1.21pm This is the reason why hundreds of you are following the live blog right now. Joseph Muscat takes the oath.
Muscat's request for urgency
1.19pm Now we turn to another issue: Muscat's request for urgency. Gouder now says that he wants Muscat to testify about the issue of urgency and an interim measure.
Does Repubblika have an interest?
1.12pm The State Advocate lawyer says the court will have to see what interest Repubblika has in intervening in the case. He refers to a challenge to recuse Magistrate Nadine Lia in a previous case, where the court said that the NGO lacked juridical interest.
The case regarding Simon Busuttil is a closer analogy, he argues, because that was about a magisterial inquiry. However, the principle of victim status applied in both. The State Advocate lawyer stops here.
State Advocate gets involved
1.08pm Now for a final round of arguments by James D’Agostino, representing the State Advocate. He says that a third party intervening in the suit has observer status and that the outcome of the case might affect him in some way or another. He asks what effect this case could possibly have on the NGO and Aquilina.
He says the intervening party controls evidence put forward by the two parties and draws a parallel with traffic accident cases where insurance companies intervene in cases.
"In this case Aquilina in his personal capacity appears to have an interest to intervene because of something said by Muscat," D'Agostino argues. "If that is so, the interest is absent."
Dismissing the memorial argument
1.04pm Gouder also moves to dismiss the relevance of a former Labour minister being allowed to join the legal debacle over the Caruana Galizia memorial. He says that the judgement had only allowed Brincat’s intervention limitedly.
"The true reason why they want to intervene is that they want to face Joseph Muscat," Gouder concludes.
That Facebook post
1pm If you've been with us from the beginning of this blog, we noted a Facebook post in which Robert Aqulina described Joseph Muscat as a "corrupt" prime minister. This is now raised by Muscat's lawyer.
"We feel that Repubblika and Aquilina can never qualify to intervene. Aquilina gave us the reason this morning," he says.
"Cite one judgment that stated that Muscat is corrupt," Gouder says, heatedly turning as he points at Muscat.
"What they didn’t achieve in the political arena they are trying to do now."
Repubblika lack victim's status
12.57 pm Gouder refers to the Simon Busuttil case Azzopardi had raised earlier. He lacked victim’s status, the court had concluded. "Repubblika are in an identical position," Gouder argues. "Hence the conditions for intervention were lacking in Busuttil’s case and likewise today with Repubblika."
Interest v juridical interest
12.50pm There's an argument now around whether the NGO Has juridical interest, which, is usually defined as having personal, actual interest in the subject matter of any litigation.
Gouder argues the NGO’s and Aquilina’s interest to intervene is not a juridical one because in some way or other they have an interest in the outcome of this case. "And that alone does not qualify them to intervene," he says.
Muscat's lawyers strike back
12.46pm Lawyer Charlon Gouder gets to his feet. He reminds the court that this case concerns Muscat's claim against the State of a breach of his fundamental rights. "Repubblika is trying to get in through the window rather than the door," he says.
12.41pm Azzopardi has another point to raise.
He refers to a judgment regarding a legal dispute around the makeshift memorial to murdered journalist Daphne Caruana Galizia, which is just opposite the law courts. Judge Zammit McKeon had accepted the intervention of former Labour minister Joseph Brincat as a private citizen. The judge had allowed him to join the legal dispute about the memorial because Brincat had an interest in safeguarding that public monument.
"So if Brincat had an interest in that monument as a private citizen, what more interest does Repubblika have in joining this case when it was the one who had asked for the magisterial inquiry in the first place," he says.
You can read about that case here.
No right to intervene, Muscat's lawyer argues
12.38pm In his reply, Muscat's lawyer Charlon Gouder argues that Repubblika had no subjective right.
Meanwhile, the former prime minister sits calmly, listening attentively, with his hands clasped on his lap.
A Konrad Mizzi precedent
12.32pm Jason Azzopardi brings up an "identical situation". He reminds the court how former Opposition leader Simon Busuttil and Repubblika had asked to be allowed to intervene in a case filed by former energy minister Konrad Mizzi linked to the Panama Papers revelations.
Judge Zammit McKeon in 2019 decreed that they had an interest to intervene, Azzopardi said.
He also quotes case law from 1990 to back up his argument
Why Repubblika should be allowed to intervene
12.29pm Jason Azzopardi goes first, saying that Repubblika’s interest in intervening in the case is clear at first glance. It is an organisation to safeguard the rule of law. That is what its statute says and it is bound to respect that. It is the only organization in Malta to do so. Repubblika was the one that asked for this inquiry in the first place.
What to expect
12.25pm Notary Robert Aquilina is here, on behalf of the civil society NGO Repubblika and is assisted by lawyer Jason Azzopardi. They had asked to intervene and the judge will first start submissions on that point. After that, the court will hear further arguments on Muscat’s request for urgency in handling this case.
Enter Joseph Muscat
12.24pm Joseph Muscat has just walked into the courtroom. He takes a seat to the side behind his lawyer Charlon Gouder.
What's happened since?
11.50am Muscat’s home was searched in January 2022 in connection with that probe.
The investigation has not been concluded yet and over the past months, Times of Malta and other investigative partners reported that investigators have been combing through Muscat’s bank accounts and income declarations for evidence of wrongdoing in the hospitals’ deal.
Times of Malta recently reported that investigators suspect consultancy payments that the former prime minister received in the months after he resigned were intended to hide kickbacks in plain sight.
11.45am Repubblika president Robert Aquilina has been taunting Muscat in the run-up to Thursday's hearing. In a Facebook post on Wednesday, he accused the former prime minister (who he described as "il-prim korrott" of making a desperate attempt to flee justice.
"He conjured up slanderous claims to try to discredit the magisterial inquiry we called for in connection with the fraudulent sale of the hospitals. We will do our utmost not to let him turn the justice process into a farce. It's evident that we are approaching the moment of truth. Our country needs citizens to rally to rid the country of the mafia clan," he said.
On Thursday morning, Aquilina upped the ante, challenging Muscat to repeat in court today his claim the investigations were a result of the work of freemasons.